The Alito Offensive

Nevada blogger No Gibbons has a list of six Alito cases that, in his view, are reason to oppose his nomination, courtesy of Think Progress. I've made that list my starting point for researching Alito's work, particularly because I've seen it in several places. I'll have time to cover about half of them tonight, but we'll have to see how it goes.

"ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]"

The title of this one begs the question. Groody was a case where some cops got a warrant for suspected drug dealer. They went to his house and searched him, a woman, and a girl. The warrant clearly gave the officers authority to search the man, so the issue on appeal was whether the warrant gave the officers authority to search the woman and child, as well. Let me emphasize that last point: Alito never support unauthorized strip searches, he argued that the strip searches were authorized. It's a not-insignificant point, because at no point in the majority opinion does any judge say that strip searches of women and children are always and in every situation forbidden by the Constitution.

According to the case, the law governing warrants is whatever a reasonable person would assume it authorizes. There is a very small box for the informant to fill out with a description of the subject and the property to be seized. The cops in this case used all the space in that little box to describe the man, and then attached affidavits expressly stating they intended to search everyone in the home (knowing that dealers often try to conceal drugs on family members in the hopes that the warrant will only name them -- it worked in this case). The issue that divided the Third Circuit was whether it was sufficient to attach that affidavit and incorporate it by reference.

As you can see, it's a pretty technical, legalistic point, and the kind of point where reasonable minds could differ. While Alito's reasoning is persuasive, I don't think it's the only reasonable outcome. But again I stress that at no point was it ever argued, by anyone at all, that it is per se unconstitutional to search women or children in a suspect drug dealer's home. I therefore take issue with the statement "Alito Supports Unauthorized Strip Searches," because if he had felt the searches were unauthorized, he would not have approved them.

"ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz[ing] an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” [Bray v. Marriott Hotels, 1997]"

Again, the title is seriously misleading. Alito certainly never held that race-based discrimination is acceptable, because the case was never about the acceptability of discrimination. A black woman sued because she was passed over for promotion. The trial judge granted summary judgment, a legal term essentially meaning that there were no disputed facts for trial. In doing so, the judge held that the plaintiff could not carry her burden of proof, because Marriot Hotels had asserted a non-discriminatory reason for their decision to promote a white woman.

On appeal, the Third Circuit had to interpret precedents discussing the burden of proof in a discrimination case. The majority said the plaintiff had cast sufficient doubt on Marriot's justification to send the case to trial, and Alito, dissenting, said she hadn't. The case, therefore, is an unsexy one: three judges arguing about burden of proof doesn't fire up the base, so Think Progress has to jazz it up by claiming that Alito likes discrimination.

As a practical matter, I think Alito was probably wrong, but I recognize that it's a very close call. Consider that in this century, no employer can be overtly racist. The danger, then, is the employer who asserts a pretext for failing to promote, when the true motivation is discrimination. It's obvious in a case where, of two candidates for the job, the white guy is manifestly, grossly incompetent, the black guy is superbly qualified, but the white guy gets the job anyway. No reasonable judge or jury will find that the employer seriously had a non-discriminatory purpose. But Bray v. Marriot is not such a case. Bray was qualified, but so was the other candidate. The reason I think Alito may have been wrong is that Bray apparently was better than the other candidate on objective factors, and was never told what her subjective evaluations showed. In my opinion, if Marriot won't show the subjective evaluations, the trial court may reasonably suspect their reasons for doing so.

Yet, my opinion aside, Alito's opinion is eminently reasonable, eminently defensible, and manifestly not the product of his support for employment discrimination. Think Progress' caricature of that case completely misses the mark.

"ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980’s. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito’s view, voting to reaffirm Roe v. Wade. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]"

Perhaps he would, but his Planned Parenthood opinion says nothing of the sort. I've already discussed this at some length, but the upshot is that Alito never said anything about the wisdom of abortion, the applicability of Roe v. Wade, or even whether the spousal notification law at issue was a good idea. He simply stated the constitutional standard (strict scrutiny for an "undue burden," rational basis otherwise), noted that all three judges agreed that was the standard, and then explained why he felt it was not an undue burden while the other two thought it was. At no point did he say it there was no undue burden because he doesn't like abortion, or because he likes the spousal notification rule. It was because he reviewed O'Connor's previous opinions on the subject, in which she repeatedly and emphatically stated that "undue burden" is much more than mere inconvenience, it means total impediment as a practical matter.

While I certainly hope Alito would vote down Roe, as it is a judicial monstrosity on many levels, and while his reputation for judicial conservativism gives me hope that he would do just that, it is simply dishonest to characterize his Planned Parenthood opinion as proof that he opposes abortion. Instead, it is a model of strict construction, judicial deference and reasoned, scholarly inquiry into controlling precedent.

I'll finish up the last three cases when I get a chance, perhaps tomorrow. And I'm going to welcome Battle Born blogger NoGibbons to my blogroll, and I hope to have some engaging debate about the local politics.